Sanjeev Kumar vs State of H.P.

Surjit Singh, J.—The applicant has been booked for offences, under Sections 306 and 498A read with Section 34 of the Indian Penal Code, along with his mother and a brother at police station Bharari, District Bilaspur.

The accusation against the applicant and other accused is that they ill-treated and tortured deceased Anita Devi, who was married to the present applicant about four years back. On 22.4.2005 she died of poisoning. The father of the deceased lodged a report with the police alleging that soon after the marriage, the present applicant, his mother, elder brother and some more members of his family started ill-treating the deceased for having not brought sufficient dowry. Often, the deceased used to complain to her father about her ill-treatment and torture at the hands of the applicant and other members of her in-laws'' family. On 15.4.2005 the deceased went to her father''s place for the last time. During this visit also she complained to her father that she was ill-treated by her in-laws for not bringing dowry. The next following day, the applicant accompanied by a friend named Bitu, went to his in-laws where the deceased had gone. He returned to his place the same night. The next following day the deceased went back to her in laws'' place. On 22.4.2005 around about 2.30 p.m., the father of the deceased was informed telephonically by one Satish Kumar, a co-villager of the applicant, that Anita Devi had died. Post-mortem examination was conducted. The doctor opined that the death had taken place due to asphyxia caused by poisoning.

The applicant has approached this Court for the second time for grant of bail, u/s 439 of the Code of Criminal Procedure. The earlier application moved by him, had been withdrawn. The Sessions Court has rejected his bail plea, on merits.

I have heard the learned Counsel for the applicant as also the learned Deputy Advocate General for the Respondent-State.

Admittedly, the marriage of the deceased had taken place with the applicant within seven years of her death. The father of the deceased in his report, which he lodged with the police soon after the death of the deceased, has specifically stated that the deceased used to be harassed and even used to be subjected to physical torture by the applicant, his mother and one of his brothers for not bringing sufficient dowry. He also reported that even on 15.4.2005 when the deceased visited him last, she made such a complaint. The mother of the deceased and her Taya and Tayee corroborate the version of the father of the deceased given by him to the police soon after the occurrence of the death.

When the report of the father of the deceased is very clear that the deceased used to be harassed and even subjected to beatings for not bringing dowry, it is not understood why the applicant has not been booked for offence u/s 304B of the Indian Penal Code which is, admittedly, more serious than the offence of abatement of suicide, u/s 306 of the Indian Penal Code for which he has been booked. Any way, the aforesaid facts suggest that prima facie an offence u/s 304B of the Indian Penal Code, punishable with imprisonment for life, has been committed by the applicant.

Sub-section (1) of Section 304B of the Indian Penal Code, which defines dowry death, says that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances, within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.

Section 113B of the Evidence Act provides that when the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.

In the present case, as already noticed, the deceased was reportedly harassed for her not bringing any dowry, even a week before her death. So presumption u/s 113B of the Evidence Act is attracted to the facts of the case.

The learned Counsel, representing the applicant, submitted that there was no independent evidence in support of the accusation of ill-treatment, harassment or torture as no person living in the neighbourhood of the in laws of the deceased has come forward to support the allegations. So, he argued that this was a fit case for grant of bail. In support of his contention, he placed reliance upon a judgment of Rajasthan High Court in Rajendra Singh v. State of Rajasthan Crimes 1988 (2) 60. In the said case the allegation of ill-treatment and demand of dowry was made by the relatives of the deceased. Single Bench of the High Court held that prima facie there being no independent evidence, there was no reason to see that the accused will not face trial or win over the witnesses.

The argument cannot be accepted in view of the law laid down by the Hon''ble Supreme Court in State of West Bengal Vs. Orilal Jaiswal and another, In that case the Hon''ble High Court had acquitted the accused charged with the offence u/s 306 of the Indian Penal Code holding, inter alia, that the neighbours or the tenants of the accused had not been examined. Rejecting the aforesaid reasoning, the Hon''ble Supreme Court observed as follows:

...Coming to the observation of the High Court that the neighbours or the tenants have not been examined, it appears to us that in the facts of the case, no adverse inference can be drawn for such non-examination. The abuse and insult hurled on the daughter-in-law usually are not expected to be made public so that the neighbours may have occasions to criticize the improper conduct of the accused and hold them with disrespect and contempt. The High Court has expressed doubts about the genuineness of the case of physical torture and abuses made by the husband and the deceased for the absence of any independent evidence given by the neighbours and co-tenants about such physical assault or the abuses hurled on the wife by the accused. We have indicated that ordinarily it is not expected that physical torture or the abuses hurled on the wife by the husband and the mother- in-law should be made in such a way as to be noticed by the tenants living in the adjoining portions of the house. It is also not the case of the prosecution that the deceased was physically assaulted so violently that the neighbours came to know about such assault. It is also not the case that abuses used to be hurled loudly so that the tenants had occasions to hear them. It was therefore not necessary to examine neighbour or tenants to prove the prosecution case. In the instant case, the evidence about physical and mental torture of the deceased has come from the mother, elder brother and other close relations. Such depositions by close relations, who may be interested in the prosecution of the accused, need not be discarded simply on the score of the absence of corroboration by independent witness. Whether the evidence of interested witness is worthy of credence is to be judged in the special facts of the case. In our view, the acts of cruelty by the accused were expected to be known by the very close relations like mother, brother, sister, etc. The evidence of the mother has been accepted by the learned Sessions Judge as worthy of credence and we do not think that the same should be discarded, in the facts of the case.

The learned Counsel for the applicant further argued that the applicant himself had carried the deceased to the hospital and this indicated that he was innocent. He cited a judgment of the Allahabad High Court in Shiv Kumar Vs. State of U.P., , wherein bail was granted to the husband charged with offences, under Sections 498 and 304B of the Indian Penal Code, on the grounds that there was no evidence of the deceased having been subjected to cruelty soon before her death and the accused himself had got the deceased admitted to the hospital.

This judgment can also not be of any help to the applicant because in the present case it is specifically stated in the FIR that only a week before her death, the deceased had complained to her father during her visit to his place, that she was harassed and subjected to cruelty for not bringing dowry.

It was then argued by the learned Counsel for the applicant that three things are required to be seen in the matter of grant of bail. According to him, those three things are (i) the investigation is complete; (ii) there is no chance of the accused tampering with the evidence, and (iii) the accused will not abscond and will be available for trial. He urged that in the present case all the three conditions were fulfilled, inasmuch as the investigation was complete; the witnesses being the relatives of the deceased were unlikely to be influenced by the applicant; and there was no apprehension of the applicant absconding, because he has landed property. This argument is also devoid of merit.

There are numerous judgments of the Hon''ble Supreme Court that besides the aforesaid three requirements, the Court while dealing with a bail matter, has to be guided by the following considerations:

(a) the nature of accusation as also the severity of the punishment in case of conviction and the nature of the supporting evidence;

(b) prima facie satisfaction of the Court in support of the charge; and

(c) frivolity and genuineness of the prosecution.

Reference in this behalf may be made to Ram Govind Upadhyay Vs. Sudarshan Singh and Others, ; State of Maharashtra Vs. Sitaram Popat Vetal and Another, ; Chaman Lal Vs. State of U.P. and Another, and Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav and Another, In addition to the above, it has also been held in Chaman Lal (supra), in State of Maharashtra (supra) and Kalyan Chandra Sarkar (supra) that the Court must record reasons for grant of bail in a case where the accused is charged with serious offence.

(Emphasis supplied)

In the present case, the applicant appears to have committed dowry death, punishable with life imprisonment, which is quite serious an offence. There is accusation by the father, the mother and other relatives of the deceased that the latter used to complain that she was subjected to cruelty for not bringing dowry. Also, presumption of Section 113B of the Evidence Act is attracted to the facts of the case, as noticed here-in-above.

Taking into consideration all the facts and the circumstances of the case and the above stated legal position, the prayer of the applicant for grant of bail is rejected.